What is a major transaction for an LLC? Approval of major transactions by shareholders and participants of companies: where violations are possible How the size of a transaction is determined

According to Art. 46 of the Federal Law “On LLC”, when classifying a transaction as a “major” transaction, the value “the value of the company’s property, determined on the basis of the financial statements for the last reporting period preceding the day the decision was made to carry out such a transaction” is used. What is the position of the highest judicial authorities on what is meant by the value of property and how it is determined. What accounting indicators should be taken into account when determining this value, and using what formula? What are the guidelines and what is the case law?

Answer

Judicial practice has established that the “value of the company’s property” when determining a major transaction is understood as “the book value of the company’s assets (current and non-current)” (Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 13, 2001 No. 62, Determination of the Supreme Arbitration Court of the Russian Federation dated July 22, 2014 No. VAS- 9687/14, Resolution of the FAS Central District of October 23, 2012 No. A54−5052/2011, Resolution of the FAS UO dated, Resolution of the FAS VVO dated). The indicators used are listed in the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 13, 2001 No. 62.

For information on how a major transaction in an LLC is approved, read the recommendations below.

The rationale for this position is given below in the materials of the “Lawyer System” .

“Individual transactions in an LLC must be concluded in a special manner established by law. Such transactions include, in particular, the so-called “major transactions”. If you do not follow the established procedure for completing such a transaction, it may be declared invalid.

Before a company enters into a transaction, a lawyer should check whether it falls under the criteria of a “major transaction” and, if necessary, ensure that the established procedure is followed.

Which deals are big?

A major transaction is a transaction or several interrelated transactions related to the acquisition, alienation or possibility of alienation by the company, directly or indirectly, of property, the value of which is 25 percent or more of the value of the company’s property (“On Limited Liability Companies”; hereinafter referred to as the LLC Law) *.

The lower limit (25%) of a major transaction may be increased by the company's charter ().

In what cases can a court recognize several transactions as interrelated and consider them together as one major transaction?

The legislation does not establish this.

The Plenum of the Supreme Arbitration Court of the Russian Federation indicated several specific signs that may indicate the interconnectedness of transactions*:

a single economic goal when concluding transactions;

general economic purpose of the sold property;

consolidation of all property alienated in transactions into the ownership of one person;

a short period of time between the execution of several transactions.

Such signs are listed in paragraph 8 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 16, 2014 No. 28 “On some issues related to challenging major transactions and interested party transactions” (hereinafter referred to as Resolution No. 28).

However, even before the Plenum of the Supreme Arbitration Court of the Russian Federation gave these clarifications, it followed from judicial practice that the risk of recognizing transactions as interrelated increases significantly if*:

transactions are homogeneous and completed with the same persons in a short period of time;

property alienated or acquired through transactions is connected by a single technological process or a single purpose;

transactions are aimed at achieving common legal consequences or a common goal.

Typically, the courts recognized transactions as interrelated if several of the listed signs occurred simultaneously (, definitions of the Supreme Arbitration Court of the Russian Federation and). Most likely, the courts will continue to pay attention to the number of available signs in the future.

In addition, now, when considering cases related to challenging large transactions, courts will need to compare the value of property alienated in all related transactions with the book value of assets as of the last reporting date. This date will be considered the balance sheet date preceding the conclusion of the first of the transactions().

The value of the property that is alienated by the company as a result of a major transaction must be determined according to the financial statements for the last reporting period (i.e., on the last calendar day of the month) preceding the day the decision was made to approve the major transaction (Part 1, Article 13, Federal Law of December 6, 2011 No. 402-FZ “On Accounting” (hereinafter referred to as the Law on Accounting); “Accounting Statements of an Organization” (PBU 4/99), approved) *.

The value of the property that the company acquires must be determined on the basis of the offer price, which is usually specified in the agreement (clause 46 of the LLC Law).

The value of the property of the company itself should be considered equal to the value of its assets (without reduction by the amount of debts), determined on the basis of financial statements for the last reporting period (i.e., on the last calendar day of the month) preceding the day the decision was made to approve a major transaction ( ; clause, Article 13 of the Law on Accounting;).

Major transactions are not()*:

transactions that are made in the normal course of business of the company;

Attention! It is not always possible to prove that a transaction relates to the ordinary business activities of the company.

The law does not establish which transactions are considered ordinary business activities.

The Plenum of the Supreme Arbitration Court of the Russian Federation indicated that ordinary business activities should be understood as any transactions that are accepted in the current activities of the company, regardless of whether the company has made such transactions previously ().

In particular, transactions made in the ordinary course of business may include transactions:

for the company’s acquisition of raw materials and materials necessary for conducting production and economic activities;

for the sale of finished products;

to obtain loans to pay for current operations.

For example, a court may consider a transaction aimed at purchasing wholesale quantities of goods for their subsequent sale through retail sale () to be ordinary business activity.

However, a transaction cannot be classified as ordinary business activity solely on the basis of the fact that:

the transaction was completed within the framework of the type of activity that is indicated in the Unified State Register of Legal Entities or the charter of the LLC as the main one for this company,

and/or the company has a license to conduct this type of activity.

Such clarifications are given in paragraph 6 of Resolution No. 28. Previously (before May 28, 2014, i.e. before Resolution No. 28 was published), the courts classified as ordinary business activities the activities of the company, prescribed in the charter and aimed at systematically generating profit () .

Also, the court, most likely, will not classify transactions that are not typical for the company as ordinary business activities, such as:

assignment agreement();

bill of exchange agreement();

mortgage agreement();

pledge of movable and immovable property and issuance of sureties in order to ensure the fulfillment of obligations of third parties();

acquisition (including leasing) of expensive fixed assets (resolutions of the Federal Antimonopoly Service of the Volga Region and);

agreement for the assignment of a share in the authorized capital of another company().

transactions, the execution of which is mandatory for the company in accordance with the law and settlements for which are made at prices determined by the authorized authority.

This provision is applicable, in particular, when concluding an agreement for the provision of services for the transmission of electrical energy, since its conclusion is mandatory for the network organization ().

It should be remembered that consumers of such services are not required to enter into an agreement, and therefore, for them, the completion of such a transaction must be approved in the prescribed manner ().

Attention! A lease agreement can be a major transaction not only for the tenant, but also for the landlord.

For a tenant, a lease agreement can be a major transaction, since the total amount of rental payments will exceed 25 percent of the value of the company’s property.

Attention! Approval may be required for more than just a contract.

The concept of “transaction”() is broader than the concept);

issuance of a bill;

payment of the authorized capital of another business company;

depositing funds as security for the execution of a contract concluded based on the results of the auction.

Can also be major transactions:

preliminary agreement;

additional agreement to the contract();

agreement on joint activities;

employment contract with an employee of the company().

Is it necessary to approve a transaction for the sale and purchase of shares concluded between LLC participants if it corresponds to the established size of a large transaction?

No no need.

If the participants of an LLC have entered into an agreement for the purchase and sale of a share in the authorized capital of the company, then the LLC itself is not a party to such an agreement. In this case, alienation of LLC property does not occur. In this regard, such an agreement is not a major transaction.

This is confirmed by judicial practice().

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A major transaction for a limited liability company requires a special procedure for approval and calculation. What is a major transaction for an LLC? How is the decision to carry it out made? In what cases is it possible to challenge it? Read in the article.

On January 1, 2017, changes to the rules defining the concept and characteristics of major transactions for business entities came into force in Russia. Changes in federal legislation affected the requirements for the mechanism of recognition, decision-making and approval, as well as the form for obtaining permits from government agencies (Federal Law No. 14-FZ “On Limited Liability Companies” dated 02/08/1998). A major transaction for an LLC in 2019 is considered to be a commercial agreement that is fundamentally different and goes beyond the normal economic activities of the company.

Which LLC transaction is considered major?

The definition and characteristics of a major transaction have general provisions for various types of enterprises, but LLC business communities have their own nuances. To understand how to determine the size of a transaction for an LLC, you need to evaluate it in terms of the following criteria:

During a large commercial transaction, expensive property is always acquired or disposed of.

The cost of the acquired or alienated property that is the object of the transaction is estimated at an amount exceeding 25% of the total price of the entire fortune of the LLC. In this case, all types of movable and immovable property included in the assets and on the balance sheet of the community are taken into account.

A major commercial and business transaction may be a single transaction or may consist of a chain of smaller commercial arrangements.

The decision to conduct transactions with property in an amount exceeding the value of all property of the organization is made by the general meeting of participants.

When summing up the value of an LLC’s property, the amount includes not only real estate, material and technical resources, but also shares, finance, and intellectual property.

Small agreements can be combined into one major transaction if the following factors are present:

have the same type of mechanism;
occur simultaneously or in a short period of time;
committed by the same participants;
united by a single task and ultimate goal.

The essence of transactions can be different:

agreements on obtaining a secured loan;
purchase of shares for a large amount;
lease agreement with the withdrawal of real estate from the organization’s use;
purchase and sale of property;
donation, exchange, guarantee.

The valuation of LLC property is carried out according to the accounting reports for the upcoming agreement period. A large transaction for an LLC may be subject to adjustments and not be recognized as such if the community charter specifies higher amounts of allowable business transactions. In this case, the transaction, even at a high cost, falls into the category of standard economic and commercial activities of the organization.

When determining the size of a transaction for an LLC, two factors are taken as a basis:

the cost of a commercial operation is calculated, after which the amount is compared with the total value of the organization’s property;
Financial and commercial principles determine whether a transaction falls outside the normal course of business.

Price criteria and approval mechanisms for a major transaction in an LLC can be changed; this fact must be reflected in the organization’s charter. This means that in any economic community higher price criteria can be established to recognize a transaction as major. The decision to conduct transactions with a high price range can be made by directors, meetings of founders, and the board of directors. But this fact must also be stated in the charter.

On amendments to the charter of an LLC with a single founder

Why do we need a separate definition of a major transaction?

A significant criterion when conducting large transactions is the order of their acceptance. A major transaction for an LLC must obtain consent and approval from the highest management body. For smaller standard business agreements, such conditions are not required.

In most LLCs, management is carried out by a sole executive body - director, president. He has the right to make decisions and dispose of the company’s assets, according to the LLC charter. The decision-making mechanism for a major transaction in an LLC is designed to limit the authority of the manager and protect the property and assets of the community. That is, it acts as an instrument of control over the leader by community members (Clause 3.1, Article 40 of Federal Law No. 14).

The terminology of the concepts of consent and approval is determined by the Civil Code Art. 26 Civil Code of the Russian Federation, Art. 157 Civil Code of the Russian Federation. The LLC is obliged to determine the size of the transaction and first obtain consent to complete it, and then approval from the highest body, which is the general meeting of participants. The charter documents of an LLC limit the powers of the head of the organization. Therefore, in the absence of consent and approval, a transaction with a value exceeding a quarter of the LLC’s property cannot be carried out. Otherwise, it can be challenged, in accordance with paragraph 1 of Art. 174 Civil Code of the Russian Federation.

The new rules in some respects soften the procedure for approving and making decisions on a major transaction. This is dictated by an analysis of judicial practice. Before the adoption of the new interpretation of the law, large transactions were often challenged in court for completely petty and unfounded reasons. Thanks to the changes made to Art. 46 of Federal Law No. 14, courts may reject claims to challenge business agreements if they do not meet the criteria for a major transaction.

Mechanism for approving a major transaction

If a transaction is considered major by all criteria, then it must receive approval from the general meeting of the LLC and consent to conclude additional agreements. When carrying out a major transaction consisting of a chain of interconnected agreements, there is a need to carry out additional commercial transactions and enter into labor contracts. Consent must also be obtained to conduct them.

Cost calculations are carried out in advance. They are easier to do if the agreement is of a single nature. With many interrelated operations, you will have to make calculations for each of them. Based on accounting reports, the ratio of the transaction amount to the value of the organization’s property is calculated. This factor is documented by a certificate of the size of the transaction for the LLC. When registering a transaction, this document may be required by Rosreestr.

Example of a decision to approve a major LLC transaction sample

The procedure for making a decision on a major transaction must be prescribed in the Charter. To approve a major transaction, an LLC may require the following actions:

making decisions by holding a general meeting of founders;
obtaining consent by voting of the board of directors;
without the need for special events and additional approvals.

Also, the LLC's constituent documents may establish a higher value of the transaction in relation to the total capital, at which the transaction can be carried out without the approval of the highest management body. If the company's charter does not stipulate a detailed procedure for conducting a major transaction, you must be guided by Art. 45-46 of Federal Law No. 14. It is legally established that in the absence of adjustments in the statutory documents, the decision to conduct a major transaction is made by the general meeting of founders. Based on the decision of the general meeting, a protocol is drawn up, which reflects this fact, the procedure is specified in paragraph 6 of Art. 37, paragraph 1, art. 50 of Federal Law No. 50).

How to calculate a major transaction for an LLC

The calculation mechanism consists of several stages:

First of all, the total cost of the transaction is determined.
The value of the community's property is derived from the accounting documents.
A comparative analysis of the ratio of the transaction value to the total value of the LLC's assets is carried out.

How to determine the value of LLC property for a major transaction? Accounting documents for the last reporting period are raised and data is taken on the total value of all assets of the organization on the balance sheet. When calculating assets, the latest report is taken as a basis. When summing up the balance sheet, only the property that currently belongs to the organization, taking into account the residual value, is taken into account. Leased property, as well as LLC debts, are not included in the calculations.

The ratio of the transaction amount to the value of the LLC’s assets is calculated using the formula: (a:b) x100 = c, where:

a – transaction cost;
b – value of LLC property;
c – percentage ratio.

If the founder of the LLC is one participant, there is no need to determine the cost of the commercial transaction; the transaction cannot be recognized as a major one (Clause 7, Article 46 of Federal Law No. 14). To confirm the operation, it is enough to submit an extract from the Unified State Register of Legal Entities to the government authorities. There is also no need to go through the approval process for a major transaction. To do this, it is enough for the founder and part-time manager to issue a permit on his own behalf.

How to challenge a transaction

If a major transaction does not pass the approval procedure, it may be challenged in court. The time limit for filing a claim is 12 months from the date one or more community members became aware that a large-scale operation was being carried out without general consent.

If a major transaction is not accepted by the general meeting the first time, the minutes indicate details that raise doubts at the general meeting. After making adjustments, the issue of carrying out this operation can be reconsidered with new calculations and compliance with the approval procedure.

The development of corporate relations in modern Russia has passed a short but very specific path. If 10-12 years ago shareholders and participants were simply extras who transferred funds to the management of companies, who did not always know the “fate” of their investments and were excluded from making management decisions, then in the last few years the situation has changed: shareholders and participants began to actively defend their rights to make claims against senior management. Both management and shareholders are interested in building new types of relationships with shareholders and participants. This is due to the achievement of a certain level of transparency of companies, the need to attract foreign investors and prepare reports according to international standards, and enter international markets. One of the important aspects of the participation of shareholders and founders in the management of companies in which their funds are invested is the approval of major transactions.

Legal essence of major transactions: where not to go wrong

What applies to major transactions?

A major transaction is a transaction related to the alienation or possible alienation of property. For joint stock companies, regardless of their “openness or closeness,” and limited liability companies, there are different approaches to determining what falls under the concept of a “major transaction.”

For joint stock companies , in accordance with the law of December 26, 1995 No. 208-FZ “On Joint-Stock Companies” (hereinafter referred to as Law No. 208-FZ), a major transaction is a transaction (including a loan, credit, pledge, guarantee) or several transactions, related to the acquisition, alienation or possibility of alienation of property, the value of which is 25 percent or more of the book value of the company’s assets, determined according to the financial statements as of the last reporting date, with the exception of transactions concluded in the normal course of business, transactions related to the placement ( sale) of ordinary shares of the company, and transactions related to the placement of issue-grade securities convertible into ordinary shares of the company (Article 78). The charter of a joint-stock company may also establish other cases in which transactions carried out by a joint-stock company are subject to the procedure for approving large transactions and which will be classified as large.

For limited liability companies , in accordance with the law of 02/08/1998 No. 14-FZ “On Limited Liability Companies” (hereinafter referred to as Law No. 14-FZ), transactions related to the acquisition, alienation or possible alienation of property, the cost of which is 25 percent of the value of the company's property, determined on the basis of the financial statements for the last reporting period preceding the day the decision was made to complete the above transaction, unless the charter of the LLC provides for a higher threshold for a major transaction.

For large transactions concluded by JSCs and LLCs, the following is common:

a major transaction is associated with the acquisition, alienation, possible alienation of the company’s property;
a transaction can be direct or a chain of interconnected transactions;
the charters of companies may change and/or supplement the procedure and list of major transactions;
transactions entered into in the ordinary course of business are not considered major transactions.

Difference in large transactions for JSC and LLC is as follows:

For a JSC, a large transaction is considered to be 25 percent of the value of the assets, while for an LLC it is 25 percent of the value of the property.

This identity is not surprising, since all corporate legislation in our country was “cut according to the same patterns.”

What transactions can be classified as transactions carried out in the normal course of business?

This issue is very important, since the entire procedure for approval or (in its absence) invalidation of the transaction is associated with it. To a greater extent, this applies to joint-stock companies, since due to the specificity of their organizational and legal form, it is joint-stock companies that have a large number of controversial issues.

At JSC, major transactions include not only loan, credit, and guarantee transactions. In accordance with paragraph 30 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 18, 2003 No. 19, transactions involving the assignment of rights of claim, transfer of debt, and contributions of funds as a contribution to the authorized capital of a business company in payment for shares (shares) may also be classified as major transactions. . And according to the norms of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 13, 2001 No. 62, all special norms and requirements applicable to JSC apply to LLCs.

However, the greatest interest in consideration is not large transactions, but transactions entered into in the ordinary course of business. Unfortunately, the current legislation does not establish clear boundaries and definitions of what relates to current economic activities and what to major transactions of an investment and strategic nature that may affect the further financial and economic activities of the company.

Unfortunately, in a number of credit institutions, not only managers, but also lawyers and credit officers misinterpret the concept of “a major transaction completed in the normal course of business.” So, this even means receiving loans for production development, purchasing equipment and components, etc.

Example 1

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A confectionery factory, created in the form of a closed joint-stock company, submitted documents to the bank to receive a large loan, the amount of which exceeds 25 percent of the value of its assets. The loan amount is 35,000,000 rubles, and the assets are 20,000,000 rubles. In the feasibility study for obtaining a loan, the joint-stock company indicated that this loan was taken to ensure production purposes, therefore it is not considered a major transaction and does not require the approval of the general meeting of shareholders. However, the bank refused to receive a loan, since such a transaction is classified as large by law and requires mandatory approval. The bank’s actions can be considered erroneous, since the transaction falls under the category of ordinary business activities. The company requested a loan to pay for current business operations.

Transactions concluded in the ordinary course of business include the following transactions:

for the acquisition of raw materials and materials necessary for the implementation of production and economic activities;
for the sale of finished products;
to carry out work;
to obtain a loan to pay for current operations.

This is exactly the list given in the joint resolution of the Plenum of the Supreme Court of the Russian Federation No. 90 and the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 9, 1999 No. 14.

Judicial and arbitration practice

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According to the joint resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation No. 4/8 dated April 2, 1997, the norms established by Articles 78 and 79 of Law No. 208-FZ “On Joint-Stock Companies” that determine the procedure for concluding major transactions by a joint-stock company do not apply to transactions committed by the company in the course of ordinary business activities (related to the acquisition of raw materials, materials, sales of finished products, etc.), regardless of the value of the property acquired or disposed of under such a transaction.

When classifying business transactions as large, arbitration courts proceed, first of all, from an analysis of the types of economic activities carried out by companies. And if a transaction is concluded in order to ensure the implementation of a certain type of economic activity or is directly caused by this type of economic activity, then it will be recognized as a transaction concluded in the course of ordinary business activity. This is confirmed by decisions of arbitration courts, in particular by decisions of the FAS Moscow District dated September 12, 2006 No. KG-A41/7615-06, FAS Northwestern District dated October 17, 2007 No. A56-51025/2006.

Judicial and arbitration practice

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The Federal Antimonopoly Service of the North-Western District, in its resolution dated December 14, 2007 No. A21-4740/2006, indicated that in accordance with the charter of the limited liability company, the priority areas of its activity are the development and implementation of civil housing construction projects and the implementation of the functions of a developer. Consequently, the general contract for the construction of a residential building cannot be challenged and classified as a major transaction.

However, the concepts of “statutory activity” and “current economic activity” are not identical. In order for a transaction to be classified as current economic activity, it is necessary to confirm that it is carried out by the company on an ongoing basis and that there are other transactions of a similar nature in its work.

Example 2

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The limited liability company operates in the field of transport transportation. The company's property amounts to 1,000,000,000 rubles. Management decided to purchase commercial real estate worth RUB 800,000,000. Mistakenly believing that the transaction fell into the category of transactions related to ongoing business activities, the CEO did not obtain shareholder approval. Due to its economic nature, this transaction did not fall into the category of current business transactions, but fell under the category of long-term investments. This transaction was not a transaction carried out by the company on an ongoing basis. Because of this, it was declared invalid.

A number of employees of credit institutions arbitrarily interpret the above concepts and sometimes do not know from which sources to obtain confirmation that the transaction relates to current economic activity. Confirmation that the transaction is carried out by the company on an ongoing basis is:

data from the statutory and constituent documents, minutes of the meeting of the board of directors and/or the General Meeting of Shareholders;
extract from the Unified State Register of Legal Entities;
accounting and tax reporting data.

Thus, a major transaction requiring approval will be considered a transaction related to the long-term immobilization of assets (for a joint stock company), property (for an LLC) or funds for purposes not related to the implementation of a typical and characteristic type of activity for a given legal entity.

Mechanism for approving major transactions in a business company

Approval of major transactions in joint stock companies

Approved major transactions in a joint stock company can be divided into transactions approved by the board of directors and major transactions requiring approval by the general meeting of shareholders. The division of transactions into those approved by various management bodies depends on the value of the property that is the subject of the transaction.

The Board of Directors of the JSC approves major transactions in the event that the subject of the transaction is property whose value is from 25 to 50 percent of the book value of assets joint stock company. Moreover, the transaction must be approved unanimously by the entire board of directors (clause 2 of article 79 of Law No. 208-FZ). If any member of the board of directors is absent, the meeting to approve a major transaction must be rescheduled to another date or written confirmation of approval must be obtained from the absentee. In the decision-making process, only the votes of retired members of the board of directors are not taken into account: those who died, who resigned early before the general meeting of shareholders. All other absences will not be considered justified and the approval decision made by a limited quorum will not be considered legitimate.

If the subject of the transaction is property whose value is more than 50 percent of the book value of assets company, then the transaction, in accordance with paragraph 3 of Article 79 of Law No. 208-FZ, is subject to approval by the general meeting of shareholders. Moreover, a major transaction must be approved by shareholders owning voting shares. Owners of preferred shares do not participate in voting. A major transaction will be considered approved if 3/4 of the votes of shareholders owning ordinary shares (qualified majority) votes in favor of it. If the shareholders violated the procedure for approving a major transaction, then in accordance with paragraph 6 of Article 79 of Law No. 208-FZ, it will be declared invalid. Moreover, the invalidity of a transaction can be recognized both at the claim of the shareholder and at the claim of the company.

If the joint stock company has only one shareholder owning 100 percent of the shares, then to approve the transaction the General Director must obtain his written consent. This is precisely the position taken by the Presidium of the Supreme Arbitration Court of the Russian Federation, which indicated in information letter No. 62 dated March 13, 2001 that in companies consisting of one shareholder, the written consent (approval) of a major transaction by the shareholder is equivalent to a decision of the general meeting of shareholders. If the company has two shareholders who own shares in equal shares (i.e. 50% each), then a decision of the General Meeting is necessary, since in this case the full composition of shareholders will be considered a qualified majority.

The larger the assets of a joint stock company, the higher the threshold for the approved amount. Modern Russian corporate practice is such that the approval of major transactions can generally be attributed to the competence of the board of directors (in particular, this practice exists in OJSC Mineral and Chemical Company EuroChem). This allows you to more quickly respond to emerging investment opportunities or other necessary large transactions with property: after all, it is easier to convene a board of directors than a general meeting of shareholders. And the general meeting can approve the transaction at a subsequent meeting. Arbitration practice also allows for this possibility.

Judicial and arbitration practice

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The resolution of the Federal Antimonopoly Service of the West Siberian District dated June 15, 2004 No. F04/3280-713/A46-2004 states that if there is subsequent approval of the transaction in accordance with Article 79 of Law No. 208-FZ, the procedure for completing the transaction is recognized as being observed and in compliance with the law.

The above order subsequent approval of a major transaction by the general meeting meets the standards of large foreign corporations. However, in Russia this practice has not yet become widespread.

Approval of major transactions in limited liability companies

In accordance with paragraph 2 of Article 32 of Law No. 14-FZ, limited liability companies may create board of directors (supervisory board), if provided for by the charter. The range of issues resolved by the board of directors of the LLC includes the approval of major transactions in accordance with Article 46 of Law No. 14-FZ, which is similar to the powers and competence of the board of directors of a joint stock company. In practice, if a board of directors is created in an LLC, then its competence in terms of approving transactions includes transactions with property, the value of which ranges from 25 to 50 percent of the value of the company’s property.

However, in most cases, an LLC does not have a board of directors, and decisions are made by a general meeting of participants.

Judicial and arbitration practice

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The resolution of the Federal Antimonopoly Service of the Moscow District dated September 25, 2006 No. A-41-K-1-2943/06 states that the decision to enter into a major transaction is made by the general meeting of LLC participants in accordance with paragraph 3 of Article 46 of Law No. 14-FZ.

A major transaction approved by the general meeting of LLC participants in violation of the law can be challenged and declared invalid in court (Article 46 of Law No. 14-FZ). If there is only one participant in the LLC, then the transaction can be approved by him in writing, without drawing up minutes of the general meeting of participants. That is, the procedure is similar to the procedure adopted for a joint stock company.

Mechanism for ensuring shareholders’ rights regarding approval of major transactions

The mechanism for ensuring rights is considered in relation to joint stock companies. In limited liability companies, the problem of ensuring rights is not so acute and is mainly associated with ousting one of the founders. And it’s not particularly difficult to notify several people, who almost always occupy administrative positions in the LLC, about holding a meeting.

Another thing is a joint stock company. Here, respect for shareholders' rights comes to the fore. Their loyalty and willingness to support all business initiatives depends on how well management can respect the rights of shareholders. Many large and dynamically developing Russian corporations have created special departments for relations with shareholders that deal with issues of relations with shareholders and investors. And JSFC Sistema OJSC even introduced a special position of corporate secretary, who deals with issues of compliance with corporate procedures and the corporation’s management system. For more fruitful communication with shareholders, you can organize an investor day in the company.

Shareholder and his rights

Non-compliance with the rights of shareholders in a number of cases is due to the fact that the shareholders themselves are unaware of their rights and opportunities, or they associate them only with the receipt of dividends and remember their rights only in cases where the amount of dividends is reduced.

The shareholder can familiarize himself with all financial and accounting documents that are listed and enshrined in the company’s charter.

Judicial and arbitration practice

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According to the resolution of the Federal Antimonopoly Service of the North-Western District dated November 18, 2002 No. A56-15780/02, the joint-stock company is obliged to provide shareholders with access to documents, the list of which is listed in paragraph 1 of Article 89 and in Article 91 of Law No. 208-FZ.

The information that shareholders can receive from the company upon their request is presented in Table 1.

A joint stock company is obliged to provide shareholders with unimpeded access to the following documents listed in Article 91 of Law No. 208-FZ:

agreement on the establishment of a joint-stock company;
the charter of the company with all registered amendments and additions;
documents confirming the unconditional and indisputable rights of the JSC to the property on its balance sheet;
internal documents of the company;
regulations on branches and representative offices of JSC;
annual reports;
financial statements in full;
minutes of general meetings of shareholders, meetings of the board of directors and audit commission;
lists of affiliates;
other documents provided for by current legislation and internal regulations of the joint-stock company.

All of the above documents are submitted within 7 days from the date of presentation of the request for review.

In this regard, it is necessary to pay attention to the fact that shareholders must clearly indicate which documents they want to familiarize themselves with. In this matter, arbitration courts side with the management of joint stock companies.

Judicial and arbitration practice

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According to the Determination of the Supreme Arbitration Court of the Russian Federation dated August 29, 2007 No. 10481/07, in order to obtain the requested information, the shareholder must specify which documents he wants to receive.

Otherwise, the process of providing information may be delayed, and not through the fault of the management of the joint-stock company, but through the fault of the shareholder himself.

At general meetings of shareholders their ability to exercise their rights depends on the percentage of the total number of votes(from the block of shares). Table 2 shows the relationship between the number of votes and the rights and responsibilities of shareholders, viewed from the perspective of the approval of large transactions.

As an example of preparation for a general meeting, one can cite RTS OJSC, in which shareholders have the right to receive complete and reliable information about the state of affairs in the JSC; for the preliminary receipt of complete, reliable and objective information necessary to make a correct and beneficial management decision for the joint-stock company.

Responsibility for violation of shareholders' rights

In this case, responsibility for violation of rights will rest with the board of directors and/or the collegial/sole executive body. This is due to the JSC officials exceeding the limits of their powers, which is a violation of Articles 173, 174 of the Civil Code.

And according to Article 168 of the Civil Code, any transaction that does not comply with the requirements of the law or other legal acts is invalid. From a legislative point of view, all major transactions executed with violations fall within the definition set out in Article 168 of the Civil Code and are declared invalid.

Judicial and arbitration practice

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According to paragraph 10 of the joint resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 2, 1997 No. 4/8, a decision of the board of directors or the executive body of a joint-stock company can be challenged in court by filing a claim to declare it invalid as in cases in which the possibility of challenging is provided for by Law No. 208-FZ, and in the absence of corresponding instructions, if the decision made does not meet the requirements of the law and violates the rights and legally protected interests of the shareholder. The defendant in such a case is a joint stock company.

The expression “the defendant is a joint stock company” means that the executive body and the board of directors bear responsibility.

Officials of joint stock companies committing administrative offenses, are liable in accordance with the Code of Administrative Offenses for the following types of violations:

under Article 14.21 of the Code of Administrative Offenses - for improper management of a legal entity, the use of powers to manage an organization contrary to its legitimate interests and/or the legitimate interests of its creditor, resulting in a decrease in the equity capital of this organization or the occurrence of damages (losses);
under Article 14.22 of the Code of Administrative Offenses - for the conclusion by a person performing managerial functions in an organization of transactions or the commission of other actions that go beyond the scope of his powers.

All of the above offenses are administrative in nature and will be considered during the arbitration proceedings.

If crimes committed by officials of a joint-stock company involve causing significant property damage, fraud or theft, then they are of a criminal nature and liability arises in accordance with the Criminal Code:

under Article 159 of the Criminal Code - for fraud (theft) of someone else’s property or the acquisition of someone else’s property by deception or abuse of trust;
under Article 165 of the Criminal Code - for causing property damage to the owner or other possessor of property by deception or abuse of trust in the absence of signs of theft;
under Article 177 of the Criminal Code - for malicious evasion of a citizen (the head of an organization) from repaying accounts payable on a large scale after the relevant court decision has entered into legal force.

Ways to deceive creditors using the mechanism for approving large transactions

Approval of large transactions can be used not only for the legal purposes of investment, business development, etc., but also to deceive creditors in order to obtain additional funds or property.

Offenses related to defrauding creditors can be divided into three groups:

offenses related to incorrect execution of documents for concluding major transactions;
offenses related to abuse of power by officials (executive body) of the company;
offenses related to conspiracy between shareholders and management of the company in order to invalidate the transaction.

Often in practice one has to deal with the opinion of the offending party that what was committed is a simple defect, a mistake by the contractor, etc. Of course, the fact of proving the unlawfulness of the debtor’s actions lies with the law enforcement agencies, who must reveal this during operational and investigative measures. However, the identification of inconsistencies in the actions taken with the norms of legislation and statutory documents can be identified already at the stage of preliminary review of documents.

Offenses related to incorrect execution of documents

lack of documented approval of a major transaction by shareholders (founders);
retroactive approval of a major transaction by shareholders.

Lack of documentary evidence of approval of a major transaction by shareholders (founders)

This approval must be provided prior to the conclusion of a major transaction. To prevent such an illegal act, it is necessary to analyze the company's charter to find out which governing body must approve this type of transaction.

If the transaction, by its parameters, is subject to approval by the board of directors, then it is necessary to obtain the minutes of the meeting of the board of directors, dated no later than the day before the presentation of the documents to the counterparty.

If the transaction falls into the category of transactions approved by the general meeting of shareholders, then it is necessary to submit the minutes of such a general meeting, dated no later than the day before the submission of documents to the counterparty.

References to the fact that a major transaction was not pre-planned, but arose unexpectedly, should not be taken into account, since every more or less large organization draws up budgets and forecast plans for the year, which are approved at general meetings of shareholders. The only possible situation is with an extraordinary meeting of shareholders, when it is convened to approve this particular transaction.

Retroactive approval of a major transaction by shareholders

A situation where the executive body of a company or its general director concludes a major transaction, and then it is approved by the general meeting or board of directors, is in principle possible. But such a procedure must be enshrined in the company’s charter and in the power of attorney issued to the general director. If this is missing, then you must refuse the deal.

A number of managers of limited liability companies refer to the fact that, in accordance with Article 46 of Law No. 14-FZ, approval of a major transaction can be obtained from the founders after its conclusion. But this is only possible if subsequent approval is enshrined in the charter of the LLC.

Offenses related to abuse of power by an official (executive body) of the company

conclusion of transactions by an official who does not have the appropriate authority;
conclusion of transactions by a person whose authority has expired.

Concluding transactions by an official who does not have the appropriate authority

Even if all documents for concluding a transaction are signed by the current general director of the company, this does not mean the legality of the transaction, since his powers must be enshrined in the charter, power of attorney and internal regulations of the organization.

Judicial and arbitration practice

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The resolution of the Federal Antimonopoly Service of the Moscow District dated 06/07/2007 No. KG-A40/4031-07 states that, according to Article 174 of the Civil Code, if the powers of a person to complete a transaction are limited by an agreement or the powers of a body of a legal entity - by its constituent documents, in comparison with as they are defined in the power of attorney and in the law, or as they may be considered obvious from the environment in which the transaction is made, and in its execution such person or body has gone beyond these restrictions, the transaction may be declared invalid by the court.

This category of violations carries legal risks for the creditor in terms of refusal of a legal claim due to the fact that if the contract states that an official of the counterparty acts on the basis of the charter, and it is certainly considered that the plaintiff has read the contract and accepts it unconditionally conditions. In this case, it will be considered that the plaintiff knowingly knew about the limited powers of the counterparty’s official and agreed to a transaction with an unauthorized person voluntarily, and therefore there are no grounds for prosecuting the defendant. A sign of obvious fraud may also be the subsequent fate of the general director, who (after the transaction was declared invalid) was dismissed at his own request and the shareholders/founders did not make any financial or legal claims against him.

Concluding transactions by a person whose authority has expired

In most cases, the CEO or other executive is appointed for a specified term. The term of office of these persons is fixed in the statutory documents of the company and is duplicated in its internal documents (regulations, job descriptions, etc.). Indirect confirmation that the authority of the official has expired is the replacement or modification of the card with sample signatures submitted to the bank (but only credit institutions can have this opportunity).

Offenses related to conspiracy between a shareholder and the company’s management to invalidate a transaction

This offense already falls under criminal, and not administrative or arbitration legislation. A conspiracy between a shareholder/group of shareholders and management is possible with the aim of stealing funds or property with their subsequent non-return and disruption of contractual relations. This usually happens in those companies that are either on the verge of ruin and bankruptcy or were created for the purposes of fraud, as well as in cases where a legal entity has “finished its journey” and, by decision of the shareholders, must be closed.

Moreover, to add credibility, the claim is filed some time after the conclusion of the transaction (after it is no longer possible to return the loan, property or property rights). And the claim in such cases is filed by a shareholder who has a small percentage, or a minority shareholder.

To prevent illegal actions of this type, it is necessary to request minutes of general meetings of shareholders preceding the conclusion of a major transaction. If the issue of approving this major transaction was brought up for discussion by shareholders, and the truth-seeking shareholder voted for approval, then it is possible to reject the claims and carry out procedures to recover funds, property and property rights and punish the perpetrators.

Additionally, it is necessary to find an opportunity to check whether shareholders were promptly informed about the agenda of the meeting and whether they had the opportunity to familiarize themselves with the materials of the agenda. In addition, it is necessary to proceed from the identity of the applicant shareholder. If, due to his personal and educational characteristics, the applicant objectively could not understand the issues of corporate law, then the issue of conspiracy should be considered first. In addition, a situation is possible where a shareholder has transferred his shares to the executive management of the company for management. In this case, there is an obvious conspiracy, and it will not be difficult to prove an interest in invalidating the transaction.

In a number of cases, shareholders claim that the shareholders/founders of the companies did not approve the transaction, management did not authorize it, and the protocols were falsified by creditors. In this case, a graphological examination is necessary.

This is just a small list of possible falsifications and frauds. Of course, along with the improvement of corporate legislation, fraudsters are improving their methods of illegal actions.

In conclusion, we note that invalidation of a major transaction entails not only financial losses in the form of an unrepaid loan, property or property rights, but also reputational risks for the lender. After all, if the organization has not previously familiarized itself with the presence of approval from the shareholders or founders of the business company, then this calls into question the qualifications of the employees who checked the documents and indicates an unsatisfactory level of the internal control system in the organization.

A major transaction for an LLC is not some abstract concept. The criteria for such agreements are clearly defined at the legislative level, so in this article we will talk about what transaction is considered major for an LLC? by force of law, what actions must be taken to approve such a transaction.

Any commercial organizations, in the course of their activities, enter into many transactions with various counterparties, since in business activities, concluding contracts is the main way to make a profit.

Article 46 of the Federal Law “On Limited Liability Companies” divides transactions into two main categories:

Ordinary transactions, which are concluded frequently, are standard for the organization and do not go beyond the usual business activities.
Transactions that are not typical for conclusion in an organization, which have certain characteristics, including the amount of the contract, or the nature of the relationship with partners. These are either agreements on the acquisition or sale of property, or agreements that give rise to civil obligations for the company.

Ordinary transactions are not large, even if they are concluded for a huge amount, i.e. the contract price is not taken into account. For example, if an organization is engaged in the construction of houses and constantly enters into such contract transactions, then they will not be large, no matter how much the company demands for construction.

By virtue of Art. 46 Federal Law No. 14, a large transaction is recognized as a transaction (or several transactions that are interrelated), the conclusion of which is not typical for the company, and its size exceeds a quarter of the book value of the LLC’s property according to the latest financial statements.

Criteria that will help distinguish a major transaction from an ordinary one

To understand which transaction is major for an LLC, it is necessary to refer to the requirements of the law, the provisions of the Resolutions of the Plenum of the Armed Forces of the Russian Federation and judicial practice.

Due to the requirements of paragraph 8 of Art. 45 Federal Law No. 14 ordinary transactions are agreements that are concluded everywhere, on a daily basis. At the same time, they are everyday not only for a specific company, but also for other companies that operate in the same field and have a similar amount of assets.

The Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 18, 2014 No. 28 (clause 6) provides examples of transactions that can be classified as ordinary.

Thus, the usual ones include contracts related to:

Purchasing goods and materials necessary for the production of products;
Purchase of machines and tools.
Sales of products produced by the organization.
Concluding loan agreements with banking organizations in order to repay the company’s current obligations to counterparties.

In paragraph 1 of Art. 46 Federal Law No. 14 provides examples of large transactions that are not typical for the company.

These include:

Large loans and credits not aimed at repaying current obligations.
Guarantee.
Purchase and acquisition of property that is not related to the normal activities of the company.
Collateral transactions.
Purchasing shares in organizations.

We remind you that the value of property and liabilities under a major transaction must exceed 25 percent or more of the book value of the organization’s assets according to accounting data as of the last reporting date. Otherwise, the transaction cannot be considered major. We'll tell you more about how to calculate the cost of a major transaction and compare it with the book value of the company's assets.

What is a major transaction for an LLC, what is the amount of the contract and how to calculate it?

The rules for resolving the issue of whether a transaction is major or not, based on its price, are reflected in clause 2 of Art. 46 Federal Law No. 14. The general rules are already set out above. What is considered a major transaction for an LLC? If the contract price is more than 25% of the company’s assets and it is not typical for the company, then it is considered large. To complete it, approval is required from the LLC participants or from the board of directors.

The rules for determining the amount of a major transaction for an LLC and comparing it with the assets of the company are as follows:

The value of property on the organization’s balance sheet is determined solely based on accounting information. In all cases, the last date of reporting is taken.
When calculating the transaction price associated with the alienation of property owned by the company, it is necessary to proceed from the book value of the alienated property, as well as the actual cost of its sale. If one of these indicators is higher than 25% of the book value of the company’s assets, it is taken into account, and the transaction is recognized as large.
When purchasing items, their price is taken into account, according to the purchase and sale agreement. The price is compared with the value of the company's assets. Similar rules apply to other transactions - contracts, provision of services, rent, leasing, etc.

The size of a major transaction for an LLC should be determined solely by the above criteria.

Approval of a transaction that is large. Approval decision

Without the approval of a major transaction in an LLC, it cannot be concluded (since there is a high probability of it being declared invalid). To approve it, a decision is necessary either from the company's participants or from the board of directors, if the corresponding powers are transferred to this management body on the basis of the company's Charter.

It is important to note that the board of directors does not have the right to approve large transactions that exceed 50% of the firm's assets. Such agreements require the approval of the company's members in all cases.

There is no form of decision that could be applied by all LLCs without exception, since it is not approved at the legislative level. However, in paragraph 3 of Art. 46 Federal Law No. 14 states what data should be indicated in the decision, so it is not difficult to draw it up.

The decision must include the following information:

Title of the document.
The date it was compiled.
Place of signing.
Information about the other party to the transaction.
The price of the contract and its subject matter, as well as the essential terms of the agreement.
Signatures of the participants.

The decision may contain consent to approve several interrelated transactions, or several unrelated contracts concluded at the same time.

The decision can be made one year before the transaction. This is due to its validity period, which is 1 year from the date of acceptance.

In addition, the decision on approval can be made after a major transaction has been concluded (subject to a suspensive condition). In this case, if someone files a claim in court to invalidate a major transaction due to the lack of consent, such a claim will be rejected if evidence of subsequent approval is presented.

Additional conditions that may be specified in the decision to approve the transaction

By virtue of clause 3 of Art. 46 Federal Law No. 14, the decision may reflect additional, but not mandatory, conditions. They give the parties to transactions a certain degree of freedom when concluding them.

Additional conditions may include:

The limits within which the transaction price can be determined, or the procedure for determining such a price.
Consent to carry out several transactions with similar conditions (of the same type or interrelated).
Terms of transactions that may be alternative and depend on the specific situation.

Situations when you do not need to approve a major transaction

In some situations, approval of a transaction that is large in value is not required. The list of such situations is specified in paragraph 7 of Art. 46 Federal Law No. 14.

These include:

Transactions concluded by an LLC, in which there is only one participant, who is the sole executive body of the company.
Transactions involving the transfer of shares in an organization from company participants to the company.
Transactions related to the transfer of rights to property when an organization is reorganized, merges with another organization, or joins another company.
Transactions, the conclusion of which is mandatory for an LLC by virtue of law or other regulatory act and the prices for which are determined by the Government of the Russian Federation.
Public contracts.
Transactions for which preliminary agreements were concluded and approved.

What awaits an LLC that has entered into a major transaction without approval (consequences)

If the transaction has not been approved, but it is mandatory, then the company’s participants, counterparties, interested parties, and members of the board of directors have the right to file an application with the court to declare the concluded agreement invalid. By virtue of the provisions of Art. 173.1 of the Civil Code of the Russian Federation, an agreement for which approval has not been received is considered invalid, if such is required in cases provided for by law.

When considering the case, the applicant will need to prove that the transaction is really large, and it was not approved before or after it was completed.

Thus, if the transaction is large, its approval is mandatory, since otherwise it may be declared invalid with all the ensuing consequences.

An enterprise takes out a loan from a bank - 10,000,000 rubles. How can one determine whether the conclusion of this agreement is a major transaction for the LLC? There is no definition of a major transaction in the company's Charter.

The value of the LLC’s property must be determined according to the financial statements for the last reporting period (i.e., on the last calendar day of the month) preceding the day the decision was made to approve a major transaction (Part 13, Part 6 Article 15 of the Federal Law dated December 6, 2011 No. 402-FZ Law on Accounting); ).

Thus, if the loan amount exceeds 25% of the book value of the company’s property, such a transaction with the bank will be large for the LLC. In this case, the transaction must undergo an approval procedure - the decision to conclude the transaction is made by the founders, for this purpose an extraordinary general meeting of the company's participants is held.

Rationale

From the recommendation of Vladislav Dobrovolsky, candidate of legal sciences, head of corporate practice of the Yakovlev and Partners Legal Group (in 2001–2005 - judge of the Moscow Arbitration Court), Vladislav Kuznetsov, Editor-in-Chief of the Lawyer Sistema Lawyer, Gennady Uvarkin, Candidate of Legal Sciences, Deputy General Director of the Omega Legal Bureau
What is a major transaction and what is the procedure for completing it in an LLC

Individual transactions in an LLC must be concluded in a special manner established by law. Such transactions include, in particular, the so-called “major transactions”. If you do not follow the established procedure for completing such a transaction, it may be declared invalid.

Before a company enters into a transaction, a lawyer should check whether it falls under the criteria of a “major transaction” and, if necessary, ensure that the established procedure is followed.

Which deals are big?

The lower limit (25%) of a major transaction can be increased by the company's charter (clause 1, article 46 of the LLC Law).*

In what cases can a court recognize several transactions as interrelated and consider them together as one major transaction?

The legislation does not establish this.

The Plenum of the Supreme Arbitration Court of the Russian Federation indicated several specific signs that may indicate the interconnectedness of transactions:

a single economic goal when concluding transactions;
general economic purpose of the sold property;
consolidation of all property alienated in transactions into the ownership of one person;
a short period of time between the execution of several transactions.

Such signs are listed in subparagraph 4 of paragraph 8 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 16, 2014 No. 28 “On some issues related to challenging major transactions and interested-party transactions” (hereinafter referred to as Resolution No. 28).

transactions are homogeneous and completed with the same persons in a short period of time;
property alienated or acquired through transactions is connected by a single technological process or a single purpose;
transactions are aimed at achieving common legal consequences or a common goal.

Typically, the courts recognized transactions as interrelated if several of the listed signs occurred simultaneously (resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 1, 2011 No. 14871/10, determinations of the Supreme Arbitration Court of the Russian Federation dated January 13, 2011 No. VAS-17801/10 and June 3, 2011 No. VAS-9530/10). Most likely, the courts will continue to pay attention to the number of available signs in the future.

In addition, now, when considering cases related to challenging large transactions, courts will need to compare the value of property alienated in all related transactions with the book value of assets as of the last reporting date. Such a date will be considered the date of the balance sheet preceding the conclusion of the first transaction (paragraph 2, subparagraph 4, paragraph 8 of Resolution No. 28).

The value of the property that is alienated by the company as a result of a major transaction must be determined according to the financial statements for the last reporting period (i.e., on the last calendar day of the month) preceding the day the decision was made to approve the major transaction (subclause 3, clause 8 of Resolution No. 28, part , article 13, part 6 article 15 of the Federal Law of December 6, 2011 No. 402-FZ “On Accounting” (hereinafter referred to as the Accounting Law); clause 48 of the Accounting Regulations “Accounting Statements” organizations" (PBU 4/99), approved by order of the Ministry of Finance of Russia dated July 6, 1999 No. 43n).

The value of the property that the company acquires must be determined on the basis of the offer price, which is usually specified in the contract (clause, article 46 of the LLC Law).

The following are not major transactions (Clause 1, Article 46 of the LLC Law):

transactions that are made in the normal course of business of the company;

Attention! It is not always possible to prove that a transaction relates to the ordinary business activities of the company.

The law does not establish which transactions are considered ordinary business activities.

In particular, transactions made in the ordinary course of business may include transactions:

for the company’s acquisition of raw materials and materials necessary for conducting production and economic activities;
for the sale of finished products;
to obtain loans to pay for current operations.

For example, a court may consider a transaction aimed at purchasing wholesale quantities of goods for their subsequent sale through retail sale to be ordinary business activity (paragraph 4, paragraph 6 of Resolution No. 28).

However, a transaction cannot be classified as ordinary business activity solely on the basis of the fact that:

the transaction was completed within the framework of the type of activity that is indicated in the Unified State Register of Legal Entities or the charter of the LLC as the main one for this company,
and (or) the company has a license to conduct this type of activity.

Such clarifications are given in paragraph 5 of clause 6 of Resolution No. 28. Previously (before May 28, 2014, i.e. before Resolution No. 28 was published), the courts classified as ordinary business activities the activities of the company, prescribed in the charter and aimed at systematically generating profit (resolution of the Federal Antimonopoly Service of the Volga District dated September 13, 2010 in case No. A65-8738/2009).

Also, the court, most likely, will not classify transactions that are not typical for the company as ordinary business activities, such as:

assignment agreement (resolution of the Federal Antimonopoly Service of the Moscow District dated July 29, 2008 No. KG-40/6410-08 in case No. A40-41489/07-83-396);
contract for the sale and purchase of bills (resolution of the Federal Antimonopoly Service of the Moscow District dated August 21, 2006 No. KG-A40/6790-06-P in case No. A40-22142/05-34-188);
mortgage agreement (resolution of the Federal Antimonopoly Service of the Volga District dated December 10, 2009 in case No. A65-13324/2009);
pledge of movable and immovable property and issuance of sureties in order to ensure the fulfillment of obligations of third parties (resolution of the Federal Antimonopoly Service of the Volga District dated April 25, 2011 in case No. A65-15719/2010);
acquisition (including leasing) of expensive fixed assets (decrees of the Federal Antimonopoly Service of the Volga District dated January 24, 2011 in case No. A65-6741/2010 and dated April 18, 2011 in case No. A12-14356/2009);
agreement for the assignment of a share in the authorized capital of another company (resolution of the Federal Antimonopoly Service of the North-Western District dated January 28, 2010 in case No. A66-2521/2009).

transactions, the execution of which is mandatory for the company in accordance with the law and settlements for which are made at prices determined by the authorized authority.

It should be remembered that consumers of such services are not required to enter into an agreement, and therefore, for them, such a transaction must be approved in the prescribed manner (Resolution of the Federal Antimonopoly Service of the Moscow District dated February 3, 2011 No. KG-A41/16658-10 in case No. A41-20271/10).

Attention! A lease agreement can be a major transaction not only for the tenant, but also for the landlord.

This is confirmed by judicial practice. When assessing the contract, the court will additionally examine whether the property (including premises, vehicles, equipment, etc.) leased is necessary for the company to carry out its main production activities (clause 40 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 11, 2002 No. 66, decisions of the Federal Antimonopoly Service of the North-Western District dated March 18, 2011 in case No. A56-38981/2010 and the FAS Volga District dated June 19, 2008 in case No. A55-8439/2007).

For a tenant, a lease agreement can be a major transaction, since the total amount of rental payments will exceed 25 percent of the value of the company’s property.

Attention! Approval may be required for more than just a contract.

In this regard, a major transaction can be not only an agreement, but also:

settlement agreement (subclause 3 of clause 10 of resolution No. 28);
debt forgiveness (subclause 4, clause 10 of resolution No. 28);
issuance of a bill;
payment of the authorized capital of another business company;
depositing funds as security for the execution of a contract concluded based on the results of the auction.

Can also be major transactions:

preliminary agreement;
additional agreement to the contract (paragraph 2, subparagraph 1, paragraph 7 of resolution No. 28);
agreement on joint activities;
employment contract with an employee of the company (subclause 1, clause 10 of resolution No. 28).

Is it necessary to approve a transaction for the sale and purchase of shares concluded between LLC participants if it corresponds to the established size of a large transaction?

No no need.

This is confirmed by judicial practice (resolution of the Federal Antimonopoly Service of the North-Western District dated January 31, 2011 in case No. A56-25492/2010).

In what order are major transactions made?

The company has the right to make a major transaction only after its approval by the participants. If a board of directors has been created in a company, then it can be entrusted with the authority to approve major transactions, the value of the alienated (acquired) property for which is from 25 to 50 percent of the company’s property (Clause 4, Article 46 of the LLC Law). If the company has one participant and he is not a director, his written consent to complete the transaction is sufficient to approve the transaction.

The procedure for approving major transactions in an LLC is defined in the LLC Law. General rules for approval of transactions are provided for in the Civil Code of the Russian Federation. They apply when the relationship is not regulated by the LLC Law.*

Rationale

On September 1, 2013, the Civil Code of the Russian Federation, dedicated to consent to a transaction, came into force. It is included in the code

Its provisions are general. In relation to it, special norms enshrined in laws (for example, in the Law on JSC) or other legal acts (for example, in the order of the Federal Financial Markets Service of Russia dated February 2, 2012 No. 12-6/pz-n “On approval of the Regulations” will have priority on additional requirements for the procedure for preparing, convening and holding a general meeting of shareholders", order of the FMBA of Russia dated September 1, 2011 No. 357 "On organizing work in the Federal Medical and Biological Agency for the approval of major transactions to subordinate federal state unitary enterprises, as well as transactions related to the provision of loans, guarantees, receipt of bank guarantees, other encumbrances, assignment of claims, transfer of debt, borrowing and other transactions").

Thus, special legislation may establish more stringent requirements for the procedure for approving a transaction than the Civil Code of the Russian Federation. For example, paragraph 3 of Article 46 of the LLC Law stipulates that the decision to approve a major transaction must indicate the persons who are parties, beneficiaries in the transaction, the price, subject of the transaction and its other essential conditions. While paragraph 3 of Article 157.1 of the Civil Code of the Russian Federation establishes that in the consent to enter into a transaction it is sufficient to determine the subject of the transaction.

In order for the participants to approve a major transaction, it is necessary to hold a general meeting, the agenda of which must include the relevant issue.

A major transaction made without prior approval is voidable. The court may declare it invalid at the request of the company or its participant (Clause 5, Article 46 of the LLC Law).

General rules for challenging transactions made without approval are provided for in the Civil Code of the Russian Federation. They apply when the relationship is not regulated by the LLC Law ().

Rationale

On September 1, 2013, the Civil Code of the Russian Federation came into force, dealing with the invalidity of transactions made without the necessary consent. It was included in the code by Federal Law No. 100-FZ of May 7, 2013 “On Amendments to Subsections 4 and 5 of Section I of Part One and Article 1153 of Part Three of the Civil Code of the Russian Federation.”

Such transactions are recognized as voidable unless it follows from the law that they must be considered void. The LLC Law does not indicate the nullity of such transactions, but, on the contrary, confirms their contestability (Clause 5, Article 46 of the LLC Law).

The circle of persons who can file a challenge is also limited in the LLC Law and is limited to participants and society.

In this case, a transaction can be declared invalid only if the other party knew or should have known that it was completed in the absence of consent (paragraph 3, paragraph 5, article 46 of the LLC Law).

At the same time, a major transaction can be approved after it has been completed, until the court makes a decision to declare it invalid (Clause 5, Article 46 of the LLC Law). This is confirmed by judicial practice (see “On some issues of application of the Federal Law “On Limited Liability Companies”,” resolution of the Federal Antimonopoly Service of the North-Western District dated December 1, 2010 in case No. A21-14037/2009).

There is no need to approve a major transaction in the following cases:

when this is directly provided for by the charter (clause 6 of article 46 of the LLC Law);
if the company consists of one participant who simultaneously performs the functions of a director (clause 9 of article 46 of the LLC Law);
if relations under a major transaction arise when a share (part of a share) in its authorized capital is transferred to the company in cases provided for by the Law on LLC (clause 9 of Article 46 of the Law on LLC);
if relations under a major transaction arise during the transfer of rights to property in the process of reorganization of the company, including when concluding a merger agreement and an accession agreement.

Thus, in order to complete the above transactions, there is no need to additionally formalize the decision of the general meeting or the sole participant to approve the transaction.*

The decision to approve a major transaction must include the following information (Clause 3, Article 46 of the LLC Law):

persons who are parties, beneficiaries of the transaction (may not be indicated if the transaction is subject to conclusion at auction or in other cases when the parties are not precisely determined by the time of approval of a major transaction);
subject of the transaction;
transaction price;
other essential terms of the transaction.

In this case, it is necessary to take into account the general requirements for the format and content of the decision of the general meeting of participants.

Attention! Approval may be required for transactions that are not major

It is imperative to follow the procedure for approving a major transaction when making other transactions that are not major (transactions of a different type and size), if this is expressly provided for by the company’s charter (clause 7, article 46 of the LLC Law, paragraph 2, subclause 1, clause 8 resolution No. 28).

Failure to comply with this procedure may result in the agreement being declared invalid (ruling of the Eleventh Arbitration Court of Appeal dated December 22, 2010 in case No. A65-14172/2010).

How to properly approve a major transaction for an LLC, if it is also an interested party transaction

In accordance with the procedure established for the approval of interested party transactions.

The law establishes that in this case, the approval procedure established not for large transactions, but for interested-party transactions (clause 8 of Article 46 of the LLC Law) should be applied. This is confirmed by judicial practice (subparagraph 4, paragraph 9 of Resolution No. 28, paragraph 11 of the Review of judicial practice of the FAS of the West Siberian District on disputes regarding the invalidation of large transactions and interested party transactions, approved by the resolution of the Presidium of the FAS of the West Siberian District dated June 10, 2011 city No. 6).

At the same time, there is an exception in the law: if all participants in the company are interested in completing an interested party transaction, then there is no need to approve such an interested party transaction, and the procedure for approving a major transaction should be applied (clause 6 of article 45, clause 8 of article 46 of the Law on OOO).